Citation Nr: 1145342
Decision Date: 12/13/11 Archive Date: 12/21/11
DOCKET NO. 07-32 542 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Newark, New Jersey
THE ISSUE
Entitlement to a rating in excess of 10 percent for acne vulgaris.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. L. Tarr, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1988 to April 1993.
This appeal to the Board of Veterans' Appeals (Board) arose from a June 2007 rating decision in which the RO, inter alia, increased the disability rating for acne vulgaris to 10 percent, effective June 22, 2006 (the date of the Veteran's claim for an increased rating). In July 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2007.
FINDINGS OF FACT
1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished.
2. Pertinent to the June 2006 claim for increase, the Veteran's service-connected skin disability has not been shown to cover 20 percent or more of the Veteran's entire body or to affect 20 percent or more of exposed areas, and treatment has consisted of topical ointments.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for acne vulgaris are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.20, 4.27, 4.118, Diagnostic Code 7806 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).
Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.
In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id.
In this appeal, a September 2006 pre-rating letter provided the Veteran notice of what information and evidence was needed to substantiate the claim for a higher rating, as well as what information and evidence must be submitted by the appellant, and what information would be obtained by VA. The letter also requested that the appellant submit any evidence in his possession pertinent to the claim, consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The June 2007 RO rating decision reflects the initial adjudication of the claim after issuance of the September 2006 letter. Thereafter, the September 2007 SOC and a June 2008 letter included the pertinent rating criteria for evaluating the Veteran's skin disability (the timing and form of which suffices, in part, for Dingess/Hartman.
Moreover, the claims file reflects that the Veteran and his representative had actual knowledge of the information and evidence needed to support his claim for a higher rating for acne vulgaris. In this regard, in the July 2007 NOD, the Veteran asserted that his skin disability was much worse than the current 10 percent rating. He specifically noted that his entire body was covered with dermatitis or eczema and that he has been treated with multiple intermittent systemic therapies. These statements demonstrate an awareness of what is necessary to support the claim; hence the Board finds that any omission in notice provided is harmless because actual knowledge of what the evidence must show to support the claim for a higher rating for acne vulgaris is shown. See, e.g., Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and the reports of the September 2006 VA examination and May 2007 addendum opinion. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his friend and representative, on his behalf.
The Board also finds that no additional RO action to further develop the record in connection with the claim for a higher rating for acne vulgaris is required. In this regard, the record reflects that the Veteran's last VA examination was in September 2006. In his July 2007 NOD, the Veteran indicated that his skin condition had worsened, thus, a VA examination was scheduled for April 2008. However, the Veteran did not report for the scheduled examination. In a March 2008 letter, the RO informed the Veteran that the VA medical facility nearest to him was requested to schedule him for a VA examination, and that if he failed report for it, his claim would be rated based on the evidence of record. The letter was not returned as undeliverable; however, the Veteran neither appeared for the scheduled examination nor contacted the VAMC to indicate that he was unable to do so. Thus, the Board finds that no further VA examination is required prior to appellate consideration of this matter.
The Board also points out that, because the Veteran failed to report to a VA examination scheduled in connection with the claim for increase, there is legal authority for VA to deny the claim as a matter of law. See 38 C.F.R. § 3.655(b) (2011). However, under the circumstances of this case-to include the fact that the letter to the Veteran informed him that the claim would be evaluated on the basis of the evidence of record-the Board will, as the RO has done, adjudicate the claim on the basis of the current record.
In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Analysis
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.
The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.
Historically, by rating decision of January 1995, the RO granted service connection for acne, and assigned an initial 0 percent (noncompensable) rating under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7899-7806, effective August 17, 1994. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. See 38 C.F.R. § 4.27. Here, the hyphenated code indicates that the Veteran's disability is rated, by analogy, to dermatitis and eczema. See 38 C.F.R. § 4.20. In June 2006, the Veteran filed this claim for an increased rating with the RO. In the June 2007 rating decision, the RO increased the disability rating for acne vulgaris to 10 percent, effective June 22, 2006-the date of the claim for increase.
Under Diagnostic Code 7806, dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body; affecting at least 5 percent, but less than 20 percent, of exposed areas; of requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent rating. Dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent rating. Dermatitis or eczema warrants a 60 percent rating if it covers more than 40 percent of the entire body, more than 40 percent of exposed areas are affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2011).
Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected acne vulgaris is not warranted at any time pertinent to the June 2006 claim for increase.
The VA treatment records reflect evaluation of, and treatment for, the Veteran's skin disability. The VA medical records indicate that the Veteran's skin disability is primarily located on his upper thighs and buttocks, with previous involvement of his forearms. The Veteran also reported some involvement of his back.
An August 2006 VA dermatology note reflects that the Veteran reported lesions on the right thigh, which were slightly raised and itched. He used lidex for the itching and denied any oral medications. The examiner noted an annular patch on the left arm, which was likely nummular dermatitis. He stated that this patch had resolved, with post inflammatory hypopigmentation. The examiner also noted several annular erythematous/hyperpigmented slightly raised patches with minimal scale (less than 1cm each) on the right thigh. The impression was dermatitis.
On VA examination in September 2006, the Veteran reported the onset of his skin condition in 2001 on his left cheek. He stated that since onset, the condition has spread to his legs, arms, and back. The Veteran noted that the lesions were persistent in nature and itched. On examination, the examiner noted one lesion on the lower back, which was slightly raised, hyperpigmented, and measured 0.75 cm in diameter. There were two similar lesions on his forearms. Additionally, there were several scattered lesions on the anterior and posterior aspect of the legs, covering approximately 20 percent of the legs. There was also one hyperpigmented circular patch on the left cheek. The impression was minimal chronic superficial perivascular dermatitis.
An October 2006 VA dermatology note reflects that the Veteran complained of new spots on his arms and legs that itched. He denied any pain, tenderness, or bleeding.
An October 2006 letter from the Veteran's friend stated that the Veteran had acne on the right side of his face, along with bumps on his left hand and body. He noted that the Veteran experienced itching and that he witnessed the Veteran scratching the affected areas.
A November 2006 VA dermatology note stated that the Veteran presented with annular patches. The examiner noted a history of annular patches on the left forearm and right thigh. The examiner noted that the forearm lesion had resolved, but the Veteran had new lesions on the right thigh. On examination, there were several slightly raised patches noted on the bilateral thighs. The impression was likely nummular eczema.
The Veteran's skin rash was biopsied in December 2006. The results were "hyperkeratosis, irregular epidermal hyperplasia, spongiosis and a perivascular inflammatory infiltrate of lymphocytes with occasional eosinophils" and a diagnosis of "spongitic dermatitis".
In a May 2007 addendum report, the previous VA examiner stated that the Veteran's dermatitis covered 10 to 15 percent of his total body surface area.
VA treatment notes, dated from April and May 2007, reflect that the Veteran complained of an "itchy" rash of the upper legs and back. Examination revealed circular lesions with peripheral scale over the buttocks and upper thighs. The Veteran believed the rash was related to his diet and he participated in a food elimination diet. He reported noticing his rash worsen when he reintroduced some foods. The Veteran also reported that he was not applying his prescribed topical medication to the rash, because it was ineffective in the past. The examiner noted that the Veteran's hyperpigmented annular lesions with raised border rash were previously unresponsive to oral and topical steroids and antihistamines.
In a June 2007 VA treatment record, the examiner noted that the Veteran's rash mostly involved his upper legs. On examination, the examiner noted that his rash remained unchanged, with multiple plaques with raised borders on his bilateral upper thighs and buttocks. The impression was dermatitis.
Collectively, VA records reflect that the Veteran was prescribed several topical ointments during the time period pertinent to the claim for increase, including absorbase, clotrimazole, fluocinonide, clobetasol propionate, calcipotriene, and triamcinolone. The medical records also indicated that the Veteran had previously been prescribed systemic therapy, including oral steroids and antihistamines, however, it was noted that this medication did not seem to be effective in treating the Veteran's skin disability. Moreover, the evidence does not reflect that the Veteran was prescribed systemic therapy (such as corticosteroids or other immunosuppressive drugs) at any time pertinent to the appeal.
In his July 2007 NOD, the Veteran asserted that his skin disability had worsened since his last VA examination. He stated that his entire body was covered with dermatitis or eczema and that he had used several intermittent systemic therapies to treat the condition. The Veteran also submitted photographs of his skin disability.
Based on the Veteran's statements that his disability had worsened, the RO scheduled the Veteran for a new VA examination to determine the current severity of his service-connected skin disability in April 2008. However, he failed to report to the examination, and, as explained above, the Board is evaluating the disability under consideration on the basis of the current record.
Here, the Board finds that the relevant evidence of record weighs against assignment of a rating in excess of 10 percent for the Veteran's skin disability at any time pertinent to the June 2006 claim for increase. As noted above, the next higher (30 percent) rating under Diagnostic Code 7806 requires dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period.
While in his July 2007 NOD, the Veteran reported that his skin disability involved his entire body and submitted photographs of his legs and back, the Board notes that there is no medical evidence to support a finding that the Veteran's skin disability covers 20 percent or more of his entire body or affects 20 percent or more of his exposed skin. Rather, the September 2006 VA examiner noted that the Veteran's skin disability affected 20 percent of the legs and 10 to 15 percent of the entire body surface area. Additionally, the VA treatment records indicate that the Veteran's dermatitis consisted of plaques that were primarily present on his upper thighs and buttocks. There is no suggestion that the plaques covered 20 percent or more of the Veteran's body or exposed skin. The VA treatment records also reflect that the Veteran treated his skin disability with topical creams. Moreover, while the VA treatment records reveal that the Veteran has previously been prescribed oral steroids, there is no indication that the Veteran's skin disability required systemic therapy at any time pertinent to the claim for increase. Accordingly, there is no basis for assigning a rating in excess of 10 percent for the Veteran's service-connected acne vulgaris at any time pertinent to the June 2006 claim for increase. 38 C.F.R. § 4.118, Diagnostic Code 7806.
The Board has also considered the potential applicability of other diagnostic codes for evaluating the Veteran's skin disability, but finds that no other diagnostic code provides a basis for higher rating. In this regard, the Veteran's skin disability has not been shown to involve systemic treatment, disfiguring or painful scars, or psoriasis. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805, 7816, 7817. The Board further notes that the disability is not shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule.
The Board reiterates that, in evaluating the disability under consideration, it has considered the Veteran's assertions-which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a rating in excess of 10 percent for acne vulgaris (noted above) requires medical findings which are within the province of trained medical professionals. See Jones, 7 Vet. App. at 137-38. Hence, while the appellant's complaints have been considered, along with the statement of his friend, they are not considered more persuasive on these points than the objective medical findings which, as indicated above, do not support the claim for a rating in excess of 10 percent. Moreover, while a more contemporaneous examination may have yielded clinical findings more favorable to the Veteran's claim for increase, as indicated above, the Veteran failed to report to such examination. The Board emphasizes that the duty to assist is not a one street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Swann v. Brown, 5 Vet. App. 229, 233 (1993).
For all the foregoing reasons, the Board finds that there is no basis for staged rating of the disability under consideration, pursuant to Hart (cited above), and that a rating in excess of 10 percent for acne vulgaris must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56 (1990).
ORDER
A rating in excess of 10 percent for acne vulgaris is denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs